Restitution of Holocaust-Era Insurance Assets: Success or Failure? Adrienne Scholz∗ I. INTRODUCTION “Please do not allow the insurance companies to retain what belongs to us.”1 This simple yet eloquent plea for justice was heard at a recent United States congressional committee hearing.2 The speaker, Israel Arbeiter, was born in Poland.3 In the middle of a cold February night in 1941, the Gestapo, the secret police force of the German Nazi regime, dragged Mr. Arbeiter and his family from their home.4 They were forced to abandon everything they had ever owned, and then were shipped to concentration camps where Mr. Arbieter’s parents and two brothers were subsequently murdered.5 For the past fifty-six years, Mr. Arbiter has been trying unsuccessfully to collect on the insurance policies of his slain family.6 This paper addresses the decades-long struggle of hundreds of thousands of Holocaust survivors and the heirs of victims, like Mr. Arbeiter, who have been continuously ∗ B.A., cum laude, Columbia University (1995); J.D., summa cum laude, Whittier Law School (2003). Ms. Scholz concentrates in Jewish Law, Holocaust & Genocide Law, and Religion & Constitutional Law. 1 Melissa B. Robinson, Congressmen Clash Over Holocaust Insurance Claims, INTERNET JERUSALEM POST, Nov. 9, 2001, at http://www.jpost.com/Editions/2001/11/09/LatestNews/LatestNews.3784 8.html. 2 Id. 3 Id. 4 Id. 5 Id. 6 Id. 297 298 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 frustrated in their attempts to claim insurance assets held by themselves or family members prior to and during the second world war. Part II will address the history and development of the problem, and the numerous legal and bureaucratic obstacles these claimants have faced over the years. Parts III.A through III.E will survey the current restitution efforts and analyze their processes and results. Part III.F will compare the various efforts, providing some insight into their relative effectiveness. Part IV concludes by answering one simple question: has Holocaust insurance restitution thus far been a success or a failure? II. HISTORICAL PERSPECTIVE Rabbi Steven Einstein describes the Holocaust succinctly: “Before World War II, approximately 8,700,000 Jews lived in Europe. By war’s end, some 6,000,000 of them had been murdered. That is the end of the story.”7 For the heirs and beneficiaries of those six million, however, the story was only just beginning. A. The Scope of the Problem and Early Restitution Efforts In order to understand the current efforts being made to restore Holocaust-era insurance assets to their rightful owners, it is helpful to first understand the background and magnitude of the problem. This section will provide a broad overview of the situation and its history, as a foundation for the analysis of Part III. 7 STEVEN J. EINSTEIN & LYDIA KUKOFF, EVERY PERSON’S GUIDE TO JUDAISM 71 (1989). 2003] HOLOCAUST INSURANCE RESTITUTION 299 1. Prevalence of Insurance Policies in Pre-War Jewish Communities of Europe Insurance of various types was perhaps the most popular form of investment amongst European Jews before the Second World War.8 Often used as a form of retirement planning amongst Jews in even the poorest areas, insurance salesmen would go door-to-door collecting weekly premium payments.9 Jewish insurance consumers in the pre-war period ranged from successful attorneys, bankers, and doctors in Germany10 to the impoverished peasantry of the Ukrainian shtetls.11 Policies were issued covering everything from life, property, and business assets to vehicles, art, and future dowries for holders’ daughters.12 Due to this broad- based popularity, it is estimated that up to one third of registered Holocaust survivors – not including heirs of those who did not survive – may have unpaid insurance claims dating from the Nazi Era.13 These policies were written by more than one hundred and fifty companies in eighteen 8 Insurance and the Holocaust, ECONOMIST (U.S. ed.), Mar. 15, 1997, at 73 [hereinafter Insurance and the Holocaust]. 9 Id. 10 LeAnn Spencer, Quest for Holocaust Insurance Benefits: Survivors, Heirs, Testify About Their Unpaid Claims, CHI. TRIB., Nov. 11, 1997, at N1. 11 Insurance and the Holocaust, supra note 8, at 73 (Shtetls were small rural communities to which Jews were often restricted in many areas of Eastern Europe). See EINSTEIN & KOKOFF, supra note 7, at 71-72. 12 See Off. Wash. St. Ins. Commr., Chicago-Area Residents Invited to Testify Nov. 10 About Holocaust-Related Insurance Claims, PR NEWSWIRE, Oct. 16, 1997 [hereinafter Chicago Residents Testify]; See also Spencer, supra note 10, at N1. 13 Fla. Dept. Ins., Florida Department of Insurance Panel To Hear From Florida Holocaust Survivors; Some Allege Proceeds Of Insurance Policies From Victims Of Nazi Persecution Enriched War Criminals, PR NEWSWIRE, Nov. 19, 1997. 300 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 countries, and were payable in twenty-one different currencies.14 2. Intentional Marketing Of Insurance To Jews After 1933 Many Jewish customers, fearful of the Nazis, intentionally sought to purchase policies from insurers outside of Germany, hoping to provide greater security for their families.15 Some insurers, such as Italian-based Assicurizioni Generali, encouraged this practice by offering policies payable in United States dollars, or by expressly providing for continued coverage in the event of emigration from Europe.16 Generali, because it had been founded by Jews and because of its location in the former Austro- Hungarian Empire (headquartered in Treiste, Italy), was particularly successful in marketing to Jews throughout Poland, Czechoslovakia, Yugoslavia, and Hungary17 – the same areas which were hit hardest by the Nazi’s “Final Solution” policy of extermination.18 Other companies appear to have been intentionally collaborating with the Nazi regime, allegedly having “went so far as to market life insurance policies to Jews in Belgium and other [already] occupied nations, knowing full well that these people would 14 Nicole Sterghos Brochu, Holocaust Compensation Failing Many, SUN-SENTINEL (Ft. Lauderdale), Nov. 9, 2001, at A4. 15 Spencer, supra note 10, at N1. 16 Bet Tzedek Leg. Servs., Report By International Commission that 75% of Holocaust Insurance Claims Are Denied Sparks California Class-Action Lawsuit, PR NEWSWIRE, May 24, 2000. 17 Insurance and the Holocaust, supra note 8, at 73. 18 LUCY S. DAWIDOWICZ, THE WAR AGAINST THE JEWS 1933- 1945 402 (1975) (table of estimated number of Jews killed showing figures in these four countries at 3,631,000 – nearly two-thirds of the six million total of the Holocaust). 2003] HOLOCAUST INSURANCE RESTITUTION 301 later be killed.”19 Special company business forms have been unearthed that suggest these insurers then let the Nazis collect from the policies of the very people they murdered.20 Some insurers, in an effort to avoid their obligations, have actually told claimants that their policies were paid to Nazi leaders.21 3. Claims Made By Survivors in the Aftermath of World War II The losses of insurance assets during the Nazi period were never a secret, “[b]ut in the first few years after liberation, they were simply swept aside and forgotten.”22 Insurers rejecting claims by survivors and heirs immediately following the war gave a wide variety of rationales for their refusal to pay. Among the reasons given were the heirs’ and beneficiaries’ inability to produce policy documents, the heirs’ inability to prove their relationship to the insured, and the destruction of company records during the war.23 Some insurers refused claims when heirs could not produce a death certificate for policyholders killed in concentration camps, or because premium payments had ceased when the policyholder was deported to Auschwitz, Dachau, or other concentration camps.24 Still others, as previously noted, refused to pay because payment had already been made to Nazi officials of the Third Reich Government.25 19 Henry Weinstein, Insurance Chief to Push Nazi-Era Cases, L.A. TIMES, Nov. 25, 1997, at A3. 20 Next Step for Holocaust Insurance Probe, UNITED PRESS INTL. (Olympia, Wash.), Dec. 12, 1997. 21 Spencer, supra note 10, at N1. 22 Id. 23 Id. 24 Insurance and the Holocaust, supra note 8, at 73. 25 See discussion, supra note 20. 302 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 Complicating the issue was the fact that many heirs, (having been young children at the time, or not even immediate family) only remembered that the deceased had carried insurance, but had no information on which company might have held the policy.26 Thus, they did not even know from whom to claim their missing assets. Even those companies that honored claims frequently paid beneficiaries paltry sums on the pretext that the policies’ values had been decreased by post-war inflation.27 For example, one French-held policy had been paid regularly by the insured for eighteen years, yet heirs were reimbursed only twenty-six centimes in 1945 – “about the price of a metro ticket.”28 According to Jewish organizations, there were lawsuits regarding wartime insurance policies brought in Austria as early as the 1950s.29 War historians in Holland estimate thirty to fifty similar cases brought in their courts during the same period.30 Little is known about the Austrian suits, except that they proved unsuccessful.31 Although the Dutch suits resulted in the rather unique position of Holland as the only European country in which most insurance policies were actually reclaimed,32 the fact remains that the vast majority of insurance assets from the rest of Europe were never returned to their rightful owners. 4. The Effect of Communism in Eastern Europe Beginning with the division of Germany immediately following the war, Eastern Europe was quickly taken over by 26 Spencer, supra note 10, at N1. 27 Insurance and the Holocaust, supra note 8, at 73. 28 Id. 29 Id. 30 Id. 31 Id. 32 See discussion infra Part III.C.2, at notes 105-106. 2003] HOLOCAUST INSURANCE RESTITUTION 303 communist forces either directly or indirectly controlled by the Soviet Union.33 As a result, most of the Eastern Bloc branches of European insurers were taken over by the emergent communist states where they were located, including those of Hungary, Poland, Czechoslovakia, Ukraine, Lithuania, and others.34 Due to the active promotion of insurance to Jews in that region by Generali, and to the demographics of those murdered in camps,35 this process affected an enormous number of contested claims.36 Generali and other insurers began to insist that agreements made with the newly formed communist governments had shifted responsibility for outstanding policies to the states involved.37 Since the communist governments did not allow access by Westerners to the records of the now state-owned insurers for decades, it has only recently been discovered that those states’ governments had financially recompensed the insurers at the time of takeover and thus now insist that the original companies are still responsible.38 Whatever the merits of these competing assertions may be, the argument overlooks yet another complication. According to survivors, many of the Eastern European policies, although issued by a local branch, were actually held by, and premiums were submitted to, the main branches of the insurers in Western 33 The History Channel, The Cold War: 1945-53, available at http://www.thehistorychannel.co.uk/classroom/gcse/cold_war1.htm (accessed Nov. 13, 2001). 34 See generally Insurance and the Holocaust, supra note 8, at 73; Spencer, supra note 10, at N1; Weinstein, supra note 19, at A3. 35 See discussion, supra notes 17-18. 36 See DAWIDOWICZ, supra note 18, at 402; Insurance and the Holocaust, supra note 8, at 73. 37 See Insurance and the Holocaust, supra note 8, at 73; Spencer, supra note 10, at N1; Weinstein, supra note 11, at A3. 38 Insurance and the Holocaust, supra note 8, at 73. 304 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 Europe, thus never having been under communist control at all.39 With the opening of the former Soviet Union and other Eastern Bloc states to Western officials, many records became accessible which had not previously been available to Holocaust survivors seeking to prove ownership of assets lost during the war.40 This development provided extensive assistance to the many refugees from formerly communist states seeking to authenticate their claims to missing assets of all kinds.41 B. Renewed Restitution Efforts in the 1990s The 1993 release of Steven Spielberg’s acclaimed film “Schindler’s List”42 is credited by many for renewing public interest in the now half-century-old search for justice.43 This renewed interest, coupled with the newly available records of the former Soviet Union, sparked a worldwide drive for Holocaust restitution beginning in the mid-1990s.44 39 Weinstein, supra note 19, at A3. 40 U.S. Dept. of State, U.S. and Allied Efforts to Recover and Restore Gold and Other Assets Stolen or Hidden by Germany During World War II: Forward and Executive Summary to the Preliminary Study (May 7, 1997), available at http://www.ita.doc.gov/media/assets1.htm (accessed Nov. 13, 2001). 41 Chicago Residents Testify, supra note 12. 42 SCHINDLER’S LIST (Universal 1993) (Dramatizing the life of German businessman Oskar Schindler, who is credited with rescuing several thousand of his company’s Jewish employees from certain death at the Auschwitz concentration camp). 43 Holocaust Insurance Claims Tackled, THE TORONTO STAR, Feb. 26, 2000 [ hereinafter TORONTO STAR]. 44 Id. 2003] HOLOCAUST INSURANCE RESTITUTION 305 1. The Interest of the United States in Procuring Restitution for Holocaust Survivors With renewed interest in Holocaust restitution came the increasing realization that America has a significant stake in the outcome of such restitution claims. Of an estimated 700,000 survivors of the Holocaust still living,45 there are believed to be at least 150,000 residing in the United States.46 In addition, many of the survivors are extremely elderly (the median age of survivors as of 1998 was 82 ½),47 and thus subject to the typical medical and other expenses associated with advancing age. With industry analysts estimating the total insurance claims at somewhere between $1 billion and $4 billion,48 the estimate of the World Jewish Congress falls directly in the median range at $2.5 billion.49 With numbers like these, public officials and humanitarian groups across the country have understandably become increasingly involved in this issue.50 2. Restitution Efforts for other Holocaust-Era Assets Holocaust survivors have claimed a plethora of missing assets, most notably funds held by various European banks and restitution for slave labor performed for German 45 German Companies Withhold Payments, SUN-SENTINEL (Fort Lauderdale), June 11, 1999, at 3D. 46 Sam Stanton & Denny Walsh, Insurance Companies Attack Holocaust Law, SCRIPPS HOWARD NEWS SERV., Apr. 25, 2000. 47 John J. Goldman, Insurer OK’s $100 Million Holocaust Payoff, L.A. TIMES, Aug. 20, 1998, at A17. 48 Insurers Paid Average of $10,000 to Holocaust Survivors, Group Says, THE TORONTO STAR, Feb. 24, 2000. 49 Insurance and the Holocaust: Eastern Blockage, ECONOMIST, Sept. 5, 1998, at 68 [hereinafter Eastern Blockage]. 50 See generally Insurance and the Holocaust, supra note 8, at 73; Spencer, supra note 10, at N1; Weinstein, supra note 19, at A3. 306 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 companies during the war period. In a New York federal class-action suit, two Swiss banks agreed to settle out-of- court for $1.25 billion in 1998.51 Bank Austria and Barclays’ (of England) settled in 1999 for $40 million and $3.6 million, respectively.52 There were numerous slave-labor lawsuits which were first consolidated, and then settled for approximately $5 billion in late 1999,53 bringing settlements for these two areas to a total of $6.3 billion. These numbers are substantially higher than the results of all the attempts at insurance restitution combined.54 III. AUTHOR’S ANALYSIS The renewed drive for insurance restitution has spanned the entire gamut of available legal tools. Lawyers and lawmakers have addressed the problem using class-action litigation,55 local and national legislation,56 national and international negotiating processes,57 and finally, individual litigation.58 The following discussion will summarize these various attempts, analyzing and comparing their respective strengths and weaknesses. A. Litigation in New York State The first major step taken in the current American restitution effort was a 1997 class-action suit filed in United 51 Henry Weinstein, $4.2 Million Settlement Uncollected, L.A. TIMES, May 17, 2000, at A3. 52 Michael J. Bazyler, Nuremberg in America: Litigating the Holocaust in United States Courts, 34 U. RICH. L. REV. 1, 248, 239-40 (2000). 53 Id. at 248. 54 See discussion infra Part III.E, at notes 196-198. 55 See discussion infra Parts III.A and III.D. 56 See discussion infra Part III.B. 57 See discussion infra Part III.C. 58 See discussion infra Part III.D. 2003] HOLOCAUST INSURANCE RESTITUTION 307 States District Court in New York against Assicurazioni Generali and numerous other European insurance companies.59 At the time, plaintiff’s attorneys Anderson, Kill & Olick P.C. estimated that the number of claimants could exceed 10,000, with average claims in excess of $75,000.60 The New York suit generated a flurry of settlement negotiations, apparently stalling the case throughout 1998 and 1999.61 Although these negotiations, along with pressure exerted by various state insurance commissioners, eventually resulted in the creation of an international commission to address the problem,62 no acceptable settlement has yet been reached with the plaintiffs of the class action. After more than three years of unsuccessful negotiations, the defendants attacked the jurisdiction of the court. In 2000, the court granted the motions of two of the defendants, UAP- Vie of France and Der Anker Allgemeine Versicherungs AG of Austria, to dismiss for lack of personal jurisdiction.63 Less than a week after the Der Anker dismissal, the court thwarted a jurisdictional attack by eighteen of the remaining twenty- two defendants by granting the plaintiffs leave to amend their complaint.64 Nevertheless, intervening events again overran the case. In the fall of 2000, negotiations between the United States, 59 Cornell v. Assicurazioni Generali S.p.A., 97 Civ. 2262 (S.D.N.Y. 1997). 60 Marilyn Henry, Holocaust Survivors Sue Generali in U.S. Class Action, JERUSALEM POST, Apr. 1, 1997, at 12. 61 See Meg Fletcher, Holocaust Settlement Collapses, BUS. INS., Sept. 28, 1998, at 2; John Authers, Deal Sought Over Holocaust Insurance, FIN. TIMES (London), May 5, 1999, at 3. 62 See discussion infra notes 122-124. 63 Cornell v. Assicurazioni Generali S.p.A., 2000 U.S. Dist. LEXIS 2922 (S.D.N.Y. Mar. 16, 2000) (dismissing UAP-Vie); Cornell v. Assicurazioni Generali S.p.A., 2000 U.S. Dist. LEXIS 11004 (S.D.N.Y. Aug. 7, 2000) (dismissing Der Anker). 64 Cornell v. Assicurazioni Generali S.p.A., 2000 U.S. Dist. LEXIS 11991 (S.D.N..Y. Aug. 22, 2000). 308 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 Germany, and several major Jewish organizations resulted in a series of settlements known as the “Berlin Agreements.”65 Among other things,66 these agreements stipulated that all “German” companies would henceforth be immune from Holocaust-related litigation in the United States.67 Due to the Court’s interpretation of the term “German” companies in these agreements as including all those at one time operating within the Third Reich, the New York plaintiffs were forced to relinquish their claim against eighteen defendants in their case.68 The court did, however, refuse the motion of the four remaining defendants (three of them Swiss companies), who also claimed immunity as “German” companies.69 With only four remaining defendants (of an original twenty-five), the case appears to have stalled. The loss of the French defendant UAP-Vie was a major blow to the plaintiffs, especially since it, like the Swiss defendants, would not qualify as a “German” company by the analysis of the New York court (Der Anker, however, would have been considered “German”).70 The remaining four companies appear to be involved in negotiations with the International Commission on Holocaust Era Insurance Claims (ICHEIC).71 If such negotiations result in an agreement, the case will likely be dismissed, leaving its plaintiffs little option but to submit to ICHEIC’s private and unregulated claims process.72 Thus, it is questionable at this point as to whether this four-year (and counting) suit, when finished, will have had any effect beyond raising public awareness of the specific issue of Holocaust insurance reparations. 65 Cornell v. Assicurazioni Generali S.p.A., 2000 U.S. Dist. LEXIS 18193 **4-5 (S.D.N.Y. Dec. 19, 2000). 66 See discussion infra Part III.C(4), at notes 151-159. 67 Cornell, 2000 U.S. Dist. LEXIS 18193 at **4-5. 68 Id. at *4. 69 Id. at *10. 70 Id. at **6-10. 71 See discussion infra Part III.C(3), at notes 122-150. 72 See discussion infra Part III.C(3), at notes 122-150. 2003] HOLOCAUST INSURANCE RESTITUTION 309 B. Legislative Efforts Triggered in part by the publicity surrounding the New York class-action suit, massive lobbying by Washington State Insurance Commissioner Deborah Senn and others resulted in the Holocaust Assets Commission Act of 1998.73 The Holocaust Act was passed by Congress for a number of purposes, one of which was to require states and their insurance commissioners to “conduct a thorough study and develop a historical record of” certain assets, including insurance policies, from the Holocaust Era.74 In response to the Holocaust Act, legislation was proposed in at least twenty-six states setting disclosure of Holocaust era information as a requirement for maintaining business licensure for insurance companies operating within the state.75 The proposed legislation would require all companies in any way affiliated, as a subsidiary or otherwise, with any European company known to have been engaged in the insurance business during the period of 1920- 1945 to disclose all information related to any unpaid policies from that period, and to timely process and pay any claims made on such policies.76 The first states to pass these 73 22 U.S.C. § 1621 (1998). See also Deborah Senn, Prepared Testimony of Deborah Senn, Washington State Insurance Commissioner, Before the House Banking and Financial Services Committee: Report on the National Association of Insurance Commissioners Holocaust Insurance Issues Working Group, FED. NEWS SERV., Feb. 12, 1998. 74 Gerling Global Reins. Corp. v. Low, 240 F.3d 739, 747 (9th Cir. 2001). 75 Global Panel Set Up to Settle Holocaust Insurance Claims, STAR TRIBUNE (Minneapolis), Apr. 9, 1998, at 10A. 76 See generally N.Y. Governor Signs Holocaust-Era Insurance Bill, BESTWIRE (A.M. Best Co., Inc.), July 9, 1998; Henry Weinstein, 2 Bills to Help Holocaust Victims With Insurance Issues Are Signed, L.A. TIMES, Sept. 30, 1998, at A3; Washington State Legislature Passes Holocaust Claims Bill, FED. & ST. INS. WEEK, Apr. 13, 1999. 310 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 regulations were New York, California, Washington, and Florida.77 Within months, Generali and other European insurers had challenged these statutes on constitutional grounds. In response to a series of subpoenas served on the insurers by the Florida State Insurance Commissioner under the new law, the first case, Gerling Global Reins. Corp. v. Nelson, was brought in the Northern District of Florida.78 The plaintiff insurers challenged the jurisdiction of the Florida subpoenas with respect to the insurers’ responsibility for their German affiliates, based on the “minimum contacts” analysis of the due process requirement.79 The court agreed that the statute as written purported to allow the insurance commission to enforce “transactions entered in Germany between German parties having no connection with Florida,” and thus was an unconstitutional overreaching of Florida jurisdiction.80 Gerling Global also challenged subpoenas served on it under California’s Holocaust Victim Insurance Relief Act (HVIRA).81 A preliminary injunction was ordered by the United States District Court in Sacramento, based on the possibility that the statute might violate the Commerce Clause and/or interfere with the federal government’s foreign affairs power.82 On interlocutory appeal, the Ninth Circuit overturned the district court’s decision with respect to the Commerce Clause because unlike the Florida statute, the California law required only the production of information, 77 Washington Legislature OK’s Holocaust Lawsuits, BEST’S REV.: LIFE-HEALTH INS. ED. (A.M. Best Co., Inc.), May 1, 1999, at 17. 78 123 F. Supp. 2d 1298, 1300 (N.D. Fla. 2000). 79 Id. at 1300-01. 80 Id. at 1299. 81 Kenneth R. Weiss, Judge Blocks Holocaust Victims Act, L.A. TIMES, June 10, 2000, at A1. 82 Gerling Global Reins. Corp. v. Quackenbush, 2000 U.S. Dist. LEXIS 8815, at *15 (E.D. Cal. June 9, 2000). 2003] HOLOCAUST INSURANCE RESTITUTION 311 not the payment of claims.83 Therefore, it did not attempt to regulate the actions of foreign entities as prohibited by the Commerce Clause.84 The Ninth Circuit also disagreed that HVIRA intruded “into the field of foreign affairs which the Constitution entrusts to the President and Congress.”85 Because none of the insurers constituted a foreign government, all of them did business in California, and HVIRA did not target companies of any specific country (rather, only a certain type of transaction), the court found no constitutional overreaching based on the “foreign affairs” argument.86 However, the Ninth Circuit, citing the Florida court’s decision, did leave the injunction in place pending investigation into due process challenge which the district court had not reached in its initial decision.87 On remand, the District Court found HVIRA to be in violation of due process because it failed to provide for a meaningful hearing before allowing the insurance commissioner to revoke the licenses of non-compliant insurers.88 However, in July 2002, the Ninth Circuit overturned the trial court on appeal, so the California statute may yet pass constitutional muster.89 The insurers have applied for certiorari to the Supreme Court. Another recent development in the legislative arena also provides a modicum of hope to frustrated claimants. In August 2001, Representative Henry Waxman of Los Angeles introduced a congressional bill calling for the National 83 Gerling Global Reins. Corp. v. Low, 240 F.3d 739, 745 (9th Cir., 2001). 84 Id. 85 Id. at 752. 86 Id. at 753. 87 Id. at 753-54. 88 Gerling Global Reins. Corp. v. Low, 2001 U.S. Dist. LEXIS 16072, at *33-34 (E.D. Cal. Oct. 2, 2001). 89 Gerling Global Reins. Corp. of America v. Low, 296 F.3d 832 (9th Cir. July 15, 2002). 312 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 Archives to establish a “Holocaust insurance registry.”90 If passed, the bill would require insurers to provide a complete listing of the names of the original holders of all unpaid Holocaust-era policies “in an electronic format” before a specified date.91 The bill is currently in committee.92 C. Negotiations The international and broad-based nature of this issue raises an obvious question with respect to negotiations: who exactly should negotiate with whom? The question has resulted in several different answers. One insurer negotiated a private settlement with the State of Israel.93 Another group of insurers negotiated with Jewish groups in their own country and with the government of the State of California.94 An international commission was created for collective negotiations between a wide range of institutions.95 And finally, the governments and insurers of Germany and Austria negotiated with international coalitions led by the United States.96 These overlapping and sometimes competing negotiations elicited widely disparate results. 1. Israeli Negotiations with Generali Generali was and remains one of the primary targets for restitution efforts for two reasons. First, due to its prevalence in Eastern Europe,97 Generali is believed to hold one of the 90 Henry Weinstein, Bill May Help Beneficiaries Settle Holocaust-Era Claims, L.A. TIMES, Aug. 2, 2001, at A9. 91 Holocaust Victims Insurance Relief Act of 2001, H.R. 2693, 107th Cong. (2001). 92 2001 Bill Tracking H.R. 2693 (LEXIS Nov. 17, 2001). 93 See discussion infra Part III.C(1). 94 See discussion infra Part III.C(2). 95 See discussion infra Part III.C(3). 96 See discussion infra Part III.C(4). 97 See discussion supra note 17. 2003] HOLOCAUST INSURANCE RESTITUTION 313 largest numbers of unpaid claims of all the European insurers, estimated at around 340,000.98 Second, in 1997 Generali acquired the Israeli insurance company Migdal, the largest insurer in the Jewish State.99 At the time of the acquisition, the Israeli Knesset (Parliament) threatened to freeze the sale unless some compensation was made.100 This resulted in the establishment of a $12 million fund that was considered by most to be embarrassingly short of Generali’s estimated responsibility.101 Further, the fund seems to have been initially mismanaged.102 In its first three years, only 100 of 1,200 claims submitted to it were actually processed.103 In addition, there were allegations that the fund’s board, who were supposed to have been volunteers recompensed only for actual expenses, were instead receiving salaries from Generali.104 Following public outcry, however, the fund seems to be operating more effectively, and by July 2001 had paid out $8,530,572 to former policyholders now living in Israel.105 2. Independent Settlements with Dutch Insurers The Netherlands seems to have been unique among European nations in its efficient handling of insurance restitution immediately following the war. Although the 98 Eastern Blockage, supra note 49. 99 Generali Insurance Stonewalling on Holocaust Insurance Payments, ISRAEL BUS. TODAY, Nov. 15, 1998. 100 American Pressure Works, ISRAEL BUS.TODAY, Sept. 15, 1998. 101 Id. 102 Questions Arise as Generali Begins Running Holocaust Fund, HA’ARETZ DAILY NEWSP., LTD (Tel Aviv), June 6, 2001 (available in WestLaw at: 2001 WL 21429730). 103 Id. 104 Id. 105 Generali Payments to Holocaust Claimants Reach $8.5m, JERUSALEM POST, July 5, 2001, at 05. 314 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 Dutch insurance companies were at first reticent to process the high volume of claims, the Dutch courts showed them little sympathy, consistently siding with the claimants.106 As a result, approximately ninety-eight percent of the Dutch policies affected by the Holocaust had been either reinstated to survivors or paid out to heirs and beneficiaries by 1955.107 Nevertheless, the Dutch government began a massive investigation in 1997, which by 1999 had affirmed that Dutch insurance policies (unlike other types of assets) had been systematically restored to their rightful owners.108 Although acknowledging a few possible loopholes, the investigators found only 750 unpaid policies among the records of some three hundred Dutch insurance firms.109 At the close of this investigation, the Dutch Association of Insurers signed an agreement with the Central Jewish Board of Holland in November 1999, requiring twenty million Guilder (approximately $8.2 million) to be set aside by its member firms for any possible individual claimants.110 The agreement provided that “everyone with a reasonable claim [would] be honored with twenty-two times the value of the policy,”111 to account for interest and inflation over the past sixty years. The insurers also agreed to contribute another twenty-five million Guilder (approximately $10.2 million) into a general fund for survivors, and to build a memorial.112 106 Central Jewish Board/Dutch Assn. of Insurers, Settlement of WWII Insurance Assets (Feb. 2000), available at: http://www.stichting- sjoa.nl/engPers.html (accessed Nov. 11, 2001) [hereinafter Central Jewish Board/Dutch Assn. of Insurers]. 107 Id. 108 Id. 109 Id. 110 Marilyn Henry, Dutch Jews Reach Holocaust Insurance Policy Deal, JERUSALEM POST, Nov. 10, 1999, at 2. 111 Marilyn Henry, Dutch Insurance Giant to Settle Holocaust Claims, JERUSALEM POST, Dec. 3, 1999, at 3A. 112 Central Jewish Board/Dutch Assn. of Insurers, supra note 106. 2003] HOLOCAUST INSURANCE RESTITUTION 315 Although at last report, the Dutch fund had paid out only 44 claims for a total of 750,000 Guilder (approximately $301,026),113 at least one survivor described the fund’s claims procedure as “very efficient.”114 Only a few weeks after the agreement with the Dutch Jewish community, Aegon, one of the largest of the Dutch firms, also agreed to establish a $1.2 million humanitarian fund for Holocaust survivors in California.115 Two other Dutch companies later joined this fund, bringing the total contribution to $4.2 million.116 Unfortunately, like the Israeli-Generali fund, the California Humanitarian Fund for Holocaust Survivors (CHFHS) also did not produce immediate results.117 Due to a political scandal involving California insurance commissioner Chuck Quackenbush,118 the money was not even collected from the Dutch companies until May 2001.119 Unlike the Israeli fund, however, the CHFHS is to be administered strictly through charitable organizations: of the twelve-member volunteer board of directors, eight are survivors themselves.120 In addition, the 113 Central Jewish Board/Dutch Assn. of Insurers, The Dutch Central Jewish Board and the Dutch Association of Insurers Reach Agreement on War Policies, at http://www.stichting-sjoa.nl/engPers.html (accessed Nov. 11, 2001). 114 Dutch Settlement, JEWISH J. OF GREATER L.A., Feb. 16, 2001, at http://www.jewishjournal.com/home/print.php3?id=6501. 115 Id. See also Henry, supra note 110, at 2. 116 Wendy Thermos, First Holocaust Payout Received, L.A. TIMES, May 11, 2001, at sec. 2,5. 117 Tom Tugend, End in Sight, JEWISH J. OF GREATER L.A., Nov. 3, 2000, at http://www.jewishjournal.com/home/print.php3?id=2314. 118 Id. 119 Jewish Community Found., Jewish Community Foundation to Manage $4.2 Million Contribution from Dutch Insurance Companies at http://www.jewishfoundationla.org/news_5-10-2001.html (accessed Nov. 11, 2001). [hereinafter Jewish Community Foundation]. 120 Tom Tugend, Fund For Survivors, (May 18, 2001) at http://www.jewishjournal.com/home/print.php3?id=6909 (accessed Nov. 11, 2001). 316 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 financial management and distributions are being handled without fees by the Jewish Community Foundation in Los Angeles.121 They expect that the distribution process should take from a year to eighteen months, with completion by the end of 2002.122 3. American Negotiators and the International Commission on Holocaust Era Insurance Claims In the fall of 1997, the National Association of Insurance Commissioners (NAIC), primarily at the insistence of Washington State Commissioner Deborah Senn and New York State Superintendent of Insurance Neil Levin, set up an internal Holocaust Insurance Issues Working Group, of which twenty-five states’ commissioners became members.123 This working group undertook considerable research on the issue, including holding public forums throughout the country in which they interviewed hundreds of Holocaust survivors regarding their insurance claims and how they had been handled by insurers.124 Their work led to the creation in October 1998 of an international commission to oversee research and restitution of the insurance claims, known as the International Commission on Holocaust Era Insurance Claims (ICHEIC).125 Although its membership has fluctuated over time, ICHEIC negotiators include representatives of several state 121 Jewish Community Foundation, supra note 119. 122 Id. 123 Nathaniel S. Shapo, Prepared Testimony of Nathaniel S. Shapo, Director, Illinois Department of Insurance, Before the House Committee on Government Reform, FED. NEWS SERV., Nov. 8, 2001. Neil Levin, sadly, was himself a victim of the September 11, 2001 terror attack at the World Trade Center. Id. 124 Id. 125 Tom Tugend, Survivors Get Short Shrift, (May 25, 2001), at http://www.jewishjournal.com/home/print.php3?id=6967 (accessed Nov. 11, 2001). 2003] HOLOCAUST INSURANCE RESTITUTION 317 insurance commissioners, five major European insurance carriers, the governments of five countries, and some half dozen international Jewish organizations.126 The stated goals of ICHEIC, according to their own publicity materials, include the research and publication of information relating to unpaid policies, the creation of a fair and expeditious method of processing claims against those policies, and the negotiation of humanitarian aid contributions with respect to undiscoverable policies or those issued to persons who were not survived by living heirs.127 Nearly from its inception, however, many have questioned ICHEIC’s ability to settle these claims fairly and efficiently. Although the insurer members initially contributed $100 million to the ICHEIC fund (of which $10 million was immediately earmarked for “operational expenses”),128 the bulk of these funds remain in escrow three years later. Debates over the valuation of policies raged for seventeen months, with German insurance giant Allianz refusing to pay more than 1.7 times the face value of the policies, far less than the twenty-two-times valuation under the earlier Dutch agreement.129 The deadlock was broken by commission chairman Lawrence Eagleburger’s insistence on approximately ten-times the face value amount.130 An official agreement to launch the claims process was finally 126 See Alfonse D’Amato, Cong. Press Release, D’Amato Praises Formation of Commission to Look Into Holocaust Insurance Claims, (Apr. 8, 1998) (on file Fed. Doc. Clearing House). 127 ICHEIC, An Explanation Of the Claims Resolution Process: Overview and Description, at http://www.icheic.org/eng/outreach.html (accessed Nov. 13, 2001). 128 Henry Weinstein, Hope Raised for Holocaust Claim Payouts, L.A. TIMES, Apr. 14, 1999, at A3. 129 European Firms Reach Agreement on Paying Jewish Insurance Policies, AGENCE FRANCE PRESSE (N.Y.), Aug. 10, 1999. 130 Meg Fletcher, Holocaust-Era Claims Formula Draws Concern, BUS. INS., Sept. 6, 1999, at 19. 318 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 reached in February 2000, placing a deadline of two years on the submission of claims.131 However, that agreement has not produced noticeable results. One of the major stumbling blocks in survivors’ pursuit of claims is that approximately eighty percent of claimants do not know which insurer held their relatives’ policies.132 And ICHEIC has been largely unsuccessful in their stated goal of extracting lists of unpaid policies and the names of their purchasers from the insurers themselves. By the end of 2000, Generali, for instance, had published on their website only about 11,000 names of an estimated 340,000.133 During the negotiation of the Israeli fund, an additional 100,000 names had previously been released by Generali to Yad Vashem,134 but only on condition that they remain confidential.135 The German-based conglomerate Allianz has an even worse record: out of an estimated 1.5 million unpaid policies, they have released only 380 names.136 And the Paris-based AXA Group insists that France’s privacy laws prevent it from releasing any part of their computerized list of 570,000 policies.137 Although the government of Czechoslovakia did volunteer a list of 20,000 names,138 the 131 Natl. Assn. Ins. Commrs., U.S. and European Regulators Launch International Effort to Settle Holocaust Victim Insurance Claims, PR NEWSWIRE, Feb. 15, 2000. 132 Off. Ins. Commr., Insurance Commissioner New Steps in Holocaust Insurance Campaign, PR NEWSWIRE, Apr.17, 2001 [hereinafter Kreidler Announces]. 133 Netty C. Gross, Questions of Policy, JERUSALEM REPORT, Dec. 4, 2000, at 20. 134 EINSTEIN & KUKOFF, supra note 7, at 76. 135 Gross, supra note 133, at 20. 136 Henry Weinstein, Holocaust Claims Still Going Unpaid, L.A. TIMES, July 9, 2001, at A1 [hereinafter Going Unpaid]. 137 Amanda Levin, Concerns Raised About Holocaust Claims Program, NATL. UNDERWRITER LIFE & HEALTH-FIN. SERV., Feb. 28, 2000. 138 Czechs Hand Over 20,000 Names to Holocaust Insurance Commission, CTK NATL. NEWSWIRE (Prague), July 23, 1999. 2003] HOLOCAUST INSURANCE RESTITUTION 319 total number of policies published by ICHEIC as of April 2001 was only about 45,000, out of at least 2.5 million known to exist.139 A further problem with the ICHEIC process revolves around the fact that the insurers are still the ones who control the review of claims.140 Despite the ICHEIC promise that their process would “allow for relaxed standards of proof,”141 some insurers are still rejecting or severely undervaluing survivors’ claims. Currently, Allianz has processed some 15,000 claims submitted to them through ICHEIC, yet only four resulted in settlement offers.142 Another insurer, Winterthur, has processed 6,500 claims and made no offers at all.143 In total, less than two percent of the 40,000 claims submitted to insurers through ICHEIC have resulted in settlement offers.144 Nearly 33,000 more have not even been processed because the claimant cannot provide policy numbers and/or the name of the insurer.145 Even those who have received offers found them ridiculously undervalued: one claimant was offered only $500 on two life insurance policies.146 139 ICHEIC, The International Commission on Holocaust Era Insurance Claims Publishes 10,000 Holocaust-Era Policies (April 6, 2001), at http://www.icheic.org/eng/press.html (accessed Nov. 13, 2001). 140 ICHEIC, Valuation of Unpaid Policies, at http://www.icheic.org/eng/claims.html (accessed Nov. 14, 2001). 141 Joanne Wojcik, Standards of Proof Will Be Relaxed: Holocaust Claims Process Coming, BUS. INS., July 26, 1999, at 3. 142 Henry A. Waxman, Prepared Statement of Representative Henry A. Waxman Before the House Committee on Government Reform, FED. NEWS SERV., Nov. 8, 2001. 143 Id. 144 Brochu, supra note 14, at A4. 145 Id. See also Waxman, supra note 141. 146 Holocaust Insurance Body Spends 30 Million to Award 3 Million, DEUTSCHE PRESSE-AGENTUR (L.A.), May 17, 2001 [hereinafter 30 Million]. 320 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 To make matters worse, reports this past summer that over $30 million spent in operating expenses had resulted in less than $3 million in payouts to survivors sparked the United States House of Representatives to request a State Department review of ICHEIC’s operations.147 The member insurers, who had financed the operations in addition to providing the escrow fund, began demanding reimbursement for these expenses.148 Finally, the German insurers, having concluded a subsequent agreement through their own government for payment of a lump sum,149 are now insisting that they are entitled to deduct all of their own administrative costs associated with the ICHEIC claims – some $76 million – from the total they are obligated to pay.150 Thus, with ICHEIC’s agreed two-year claim period ending in February 2002 (now extended to February 2003),151 tens of thousands of still-unpaid claimants have grown increasingly worried that as with the New York suit, nothing at all will have been accomplished for them by this commission. As of November 2001, ICHEIC had disbursed to survivors only $21.9 million of the original $90 million available to it.152 4. German Negotiations and the “Berlin Agreements” A series of negotiated settlements between the German and American governments, and between more than 3,000 German companies (including insurers), and a number of Jewish Organizations, resulted in the creation of the 147 Id. 148 Going Unpaid, supra note 136, at A1. 149 See discussion infra Part III.C(4). 150 Claire Wilkinson, Holocaust Claims Taking Too Long, LLOYD’S LIST INTL., Sept. 12, 2001. 151 Kreidler Announces, supra note 132. 152 Brochu, supra note 14, at A4. 2003] HOLOCAUST INSURANCE RESTITUTION 321 Remembrance, Responsibility, and Future Foundation.153 This foundation, established under the so-called “Berlin Agreements” finalized in October 2000, provide for the restitution of a number of different types of assets, including those of individual insurance claims in a total amount of 200 million Deutschmarks (approximately $90.5 million).154 An additional 350 million Deutschmarks ($158.3 million) are to be provided for a humanitarian fund for those who cannot substantiate their individual insurance claims.155 Although the German law creating the foundation specifically states that the insurance monies are to be processed and paid out through ICHEIC,156 the agreement apparently conflicts with the previously-established ICHEIC procedures, most notably in the area of operational expenses.157 Thus, the German foundation and ICHEIC are currently battling over implementation procedures, and all the German insurance claims are “still tied up in knots.”158 In addition, the German settlements, like the Dutch agreements before them, purport to prohibit all future legal claims against any German insurer.159 Unlike the Dutch agreements, however, these agreements seem to define “German” to mean any company which operated in any territory which was previously controlled by the “Third Reich” government, including those of Germany, Poland, 153 Winters v. Assicurazioni Generali S.p.A., No. 98 Civ. 9186 U.S. Dist. LEXIS 18193 **4-5 (S.D.N.Y. Dec. 19, 2000). 154 German Econ. Found. Initiative Steering Group, A Law on the Creation of a Foundation: “Remembrance, Responsibility and Future”, 8-9 (Oct. 2000) at http://www.stiftungsinitiative.de/ers.html (accessed Nov. 12, 2001). 155 Id. 156 Id. 157 See discussion infra Part III.C(3). 158 Wilkinson, supra note 150. 159 Winters v. Assicurazioni Generali S.p.A., No. 98 Civ. 9186 U.S. Dist. LEXIS 18193 **4-5 (S.D.N.Y. Dec. 19, 2000). 322 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 Austria, Czechoslovakia, Lithuania, Ukraine, Denmark, Norway, Holland, and others.160 The result has been to drastically hamper alternative restitution efforts against insurers and governments throughout much of the region at issue.161 5. The Austrian Negotiations and Settlement Like the Germans, the Austrian government and industry representatives negotiated a settlement intended to create a restitution foundation in exchange for immunity from legal action in the United States.162 This settlement appears to have been concluded hurriedly in the last days of the Clinton administration in January 2001.163 Among other things, it provides for insurance restitution in the maximum amount of only $25 million – an amount so low that one law firm, representing some 230 claimants, walked out of the negotiations even before they were completed.164 In addition, this settlement required claims to be processed through ICHEIC, resulting in further negotiations concerning administrative costs and claims handling procedures as with the German agreement.165 160 Id. 161 Id. See also discussion supra, Part III.A, at notes 65-69 (as in the New York State class-action suit). 162 McKenna & Cuneo, L.L.P., Holocaust Survivors, Heirs Challenge U.S.-Austria Agreement in Lawsuit (June 14, 2001), at http://www.mckennacuneo.com/articles/article_detail.cfm?467 (accessed Nov.17, 2001) [hereinafter McKenna]. 163 Id. 164 Id. 165 J.D. Bindenagel, Prepared Statement of Ambassador J.D. Bindenagel, Special Envoy for Holocaust Issues, U.S. Department of State, Before the House Committee on Government Reform, FED. NEWS SERV., Nov. 8, 2001. 2003] HOLOCAUST INSURANCE RESTITUTION 323 D. Litigation in California Due to frustration with the organized attempts at insurance restitution, some claimants have returned to the courts to seek justice in their claims against recalcitrant insurers. Although California’s HVIRA statute was held to be a violation of due process, dicta in Gerling Global v. Low indicated that these insurers would be subject to jurisdiction under the “minimum contacts” analysis.166 Thus, more recent litigation has been brought in California courts. 1. Suits Brought by Individual Plaintiffs The landmark individual case was filed in the United States District Court in Los Angeles, California, against Italian insurer Generali, by the family of Hungarian winemaker Mor Stern, killed at Auschwitz.167 Consistent with its previous actions, Generali contested jurisdiction, but Judge Florence-Marie Cooper disagreed on the basis that Generali does significant business in California.168 Although the Sterns eventually settled the case for a reported $1.25 million,169 the Los Angeles Court’s holding on the jurisdiction issue has provided new hope to other claimants. More than 30 other plaintiffs have filed suit in California,170 at least three of which have also settled for confidential amounts. 166 Gerling Global Reins. Corp. v. Low, No. Civ. S-00-0506 U.S. Dist. LEXIS 16072, at *25-26 (E.D. Cal. Oct. 2, 2001). 167 Court Ruling Boosts Private Holocaust Lawsuits, N.Y. TIMES, Jan. 31, 1999, at sec. 1, 18 [hereinafter Court Ruling]. 168 Id. 169 Generali Reportedly Pays 1.25 Mln USD Settlement to Family of Auschwitz Victim, AFX EUROPE, Nov. 25, 1999. 170 Court Ruling, supra note 167, at 18. 324 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 2. Class-Action Litigation In the latest development, two class-action suits have been brought against negotiated settlements involving ICHEIC. The first suit complains of undervalued and deceptively presented settlement offers made by Generali under the auspices of ICHEIC. The second, more audacious suit, complains that the entire Austrian settlement agreement is illegal. a. Haberfeld v. Assicurazioni Generali Felicia Haberfeld, the woman who had received the offer of only $500 for her two claims processed by ICHEIC,171 has become the named plaintiff in a California class-action suit against Generali. Filed May 16, 2001, the suit charges that Generali is fraudulently attempting to deceive claimants into giving up their legal rights under California law by sending them a form letter which “creates the false impression that ICHEIC has some type of governmental status, and provides an exclusive remedy for the resolution” of their claims.172 The complaint pointedly states that ICHEIC is a voluntary, private, and secretive organization which is entirely funded by insurers and thus can do nothing without their approval.173 Haberfeld is requesting an injunction to prevent Generali from contacting survivors with undervalued settlement offers, to nullify any similar offers already accepted through ICHEIC, and to make public the results of 171 30 Million, supra note 146. 172 Press Release, Shernoff, Bidart & Darras, Haberfeld v. Assicurazioni Generali, S.p.A., No. BC250565 (May 16, 2001), at http://www.shernoff.com/news/pressreleases/haberfeld.php (accessed Nov. 17, 2001). 173 Id. ¶¶ 30, 35. 2003] HOLOCAUST INSURANCE RESTITUTION 325 the prior individual cases (such as the Stern family’s) in California.174 b. Anderman v. Fed. Republic of Austria McKenna & Cuneo, the law firm that refused to sign the Austrian agreement on behalf of its clients, filed suit against the state less than a month later.175 McKenna’s 205-page complaint is in itself a staggering testament to the magnitude of the financial wrongs committed during the Holocaust, detailing with succinct precision the assets appropriated from each and every one of the suit’s two hundred and forty-one named plaintiffs and/or their deceased family members.176 Between them, the named plaintiffs were able to document two hundred and forty-four insurance policies, with values in 1938 exceeding 622,000 Reichsmarks (the currency of the Nazi regime).177 The complaint pleads twelve causes of action under United States, Austrian, International, and California State laws, including conversion, breach of contract, unjust enrichment, breach of fiduciary duties, violation of the Alien Tort Claims Act, violation of California’s HVIRA and related statutes, and violation of the 1955 Multilateral State Treaty that created the current Austrian government.178 Not only does the complaint demand disclosure and restitution 174 Press Release, Shernoff, Bidart & Darras, Generali Accused of Deceiving Holocaust Survivors in Class Action Lawsuit: Injunction Sought to Stop Unfair Insurance Practice (May 16, 2001) at http://www.shernoff.com/news/pressreleases/051601pr.php (accessed Nov. 17, 2001). 175 McKenna, supra note 162. 176 Compl. at 1-4, 16-177, Anderman v. Fed. Republic of Austria, No. CV 01-01769 FMC (C.D. Cal. June 14, 2001). 177 Id. A number of the policies could not be valued, or were valued in a different currency of the time. Id. 178 Id. at 189-201. 326 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 (with interest), but it also claims punitive damages, damages for emotional distress, disgorgement of all profits earned from the funds during the past sixty or so years, declarations that the Austrian settlement and ICHEIC do not relieve the defendants of legal liability, and of course, attorney’s fees.179 No rulings have yet been made on the case. E. Multi-District Litigation As this article was going to press, the original New York class action suit that began the drive for insurance restitution was suddenly revived. In a series of procedural moves, the four remaining insurer defendants convinced the various courts involved to consolidate all the new California litigation with the New York suit as Multi-District Litigation located in New York. Following the consolidation and transfer, the insurers then moved to dismiss on the theory of forum non coveniens, arguing that either 1) ICHEIC was the proper forum for the resolution of these claims, or 2) the claims should be litigated in the various European countries where the contracts arose. On September 25, 2002, Judge Michael Mukasey wrote a lengthy decision denying these claims. Most importantly, his decision makes clear that ICHEIC, at least from a judicial standpoint, is an utterly “inadequate forum” for the resolution of these policies.180 It looks as if this seemingly stalled suit is about to become very active again, after an almost three-year hiatus. Further, it may mean the end of ICHEIC as an accepted process for resolution. This would be a blessing for the restitution movement, since ICHEIC has been riddled with difficulties since its inception. 179 Id. at 202-203. 180 In Re: Assicurazioni Generali SpA Holocaust Insurance Litigation, MDL 1374, M21-89 (E. Dist N.Y. Sept, 25, 2002) (available at 2002 WL 31133027). 2003] HOLOCAUST INSURANCE RESTITUTION 327 F. Comparison of the Various Restitution Methods Once one has examined the details of the different approaches that have been utilized in the attempt to achieve restitution of insurance assets, a number of factors for comparison become apparent. Among the most important appear to be: 1) the level of disclosure of essential information (i.e., lists of names); 2) the processes employed for claims handling and disbursement; 3) the monetary amounts pledged in restitution; 4) comparison of amounts pledged to actual estimated losses; 5) comparison of amounts pledged to those achieved in restitution efforts for other types of assets; and finally, 6) the amount actually received by claimants. Although not all of these factors apply to every method, this section will synthesize the foregoing analysis, highlighting the successes and failures of the current efforts. 1. Disclosure of Names The important issue of extracting from insurers the names and policy numbers of some 2.5 million policies, so crucial to effective restitution, appears to be one of the worst failures of all of the methods employed thus far. The New York class-action suit did not directly address the issue at all. Presumably, the attorneys expected to be able to demand discovery on the behalf of unnamed plaintiffs, but the case has not been allowed to progress that far.181 American insurance statutes requiring disclosure have not withstood Constitutional scrutiny, and thus cannot be enforced by the states that passed them.182 The various negotiated settlements have not been significantly more successful. The 100,000 names produced by Generali in conjunction with the Israeli 181 See discussion supra notes 59-72. 182 See discussion supra notes 80, 88. 328 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 fund remain confidential, inaccessible to individual claimants.183 The Dutch, German, and Austrian settlements did not require disclosure at all.184 Ironically, ICHEIC has actually been the most successful in this endeavor, with their pitiful list of 45,000 names – less than two percent of the estimated total.185 Currently, the only hope for access to any significant portion of this information rests in the potential outcome of the Anderman case against the Austrian settlement, which demands disclosure from the Austrian defendants.186 However, there is still no means in place, or even proposed, for survivors of any other country to access insurers’ records regarding their claims. 2. Claims Processing and Disbursement The issue of how claims should be processed and disbursed, and by whom, has been a major source of contention amongst all of the involved parties throughout the restitution efforts. Clearly, the most effective disbursements have been the direct settlements between Generali and the Stern family and other California individual plaintiffs.187 However, it is just as clearly impractical for every one of the 700,000 survivors to sue individually as the Sterns did. Thus, it is appropriate to compare the procedures in the larger settlements, in order to determine which methods may be the most successful in the future. The two main problems that have developed in the settlement processes are 1) who controls the approval or disapproval of claims, and 2) how administrative costs should be handled. The hearings currently being held by the House Committee on Government Reform are making it 183 See discussion supra note 134. 184 See discussion supra notes 105-133, 152-164. 185 See discussion supra note 138. 186 See discussion supra note 178. 187 See discussion supra note 168. 2003] HOLOCAUST INSURANCE RESTITUTION 329 painfully clear that ICHEIC’s procedures for both are almost entirely unworkable.188 Because ICHEIC leaves ultimate approval control in the hands of insurers, they are free to continue rejecting the same valid claims they have been rejecting for six decades, quietly disregarding the processing standards they themselves negotiated for almost a year and a half.189 Further, ICHEIC’s high administrative costs, fully funded by those same insurers, leave the commission beholden to the goodwill of these companies and therefore not in a position to enforce the standards of the original agreement.190 Also, most recently, the arguments over administrative costs are now interfering with the processing of claims under the German and Austrian agreements, which carry differing terms than those negotiated at ICHEIC’s inception.191 As a result, ICHEIC has been able to disburse, at most, less than eleven percent of its available funds to eligible claimants.192 In contrast, the Israeli-Generali fund appears to have been somewhat more effective. Although this fund also initially had some difficulties concerning administrative expenses, its independent board of directors retained exclusive control over the claims approval process.193 Consequently, it has achieved a far higher claims approval rate than ICHEIC, so that more than two-thirds of the original fund has now been disbursed to its intended recipients.194 Finally, it is worth examining the California humanitarian fund. Although this fund does not actually engage in determining the validity of claims (it is strictly 188 See discussion supra notes 139-149. 189 See discussion supra note 128. 190 See discussion supra notes 146-149. 191 See discussion supra notes 148-149. 192 See discussion supra note 151. 193 See discussion supra note 103. 194 See discussion supra note 104. 330 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 need-based), and is too new to have actually disbursed any monies, its procedures may serve as a model for future efforts.195 Not only does a board of independent volunteers control it, but all its administrative costs are being donated by the Jewish Foundation.196 For the larger funds, it would likely seem unreasonable for the extensive costs to be absorbed by the same community which is intended to be compensated, but it is certainly laudable that the entirety of the monies in the California fund will go directly to actual Holocaust survivors rather than to administrators and other employees. In sum, the future goals regarding this issue should revolve around finding an independent, objective method for investigating claims, such as the Israeli process, that can be administered fairly with respect to all parties. This should be combined with a cost-effective administration process, perhaps involving a higher level of volunteer or donated services such as with the California fund, which will not leave the process subject to the influence of whoever is paying the bills. 3. Amounts Pledged: How These Amounts Compare to Estimated Losses and Other Restitution Efforts Simple addition of the figures achieved through the combined methods results in a rather unsatisfactory picture. To summarize briefly, the amounts from each attempt to restitute individual claims are as follows: 1) the New York suit, nothing at all; 2) Legislation, also nothing; 3) the Israeli fund, $12 million; 4) the Dutch fund, $8.2 million; 5) ICHEIC, $90 million; 6) the German fund, $90.5 million; 7) the Austrian fund, $25 million; and finally, 8) the Stern family settlement, $1.25 million. The net result totals roughly $227 million, plus the amounts of the three 195 See discussion supra note 121. 196 See discussion supra notes 119-120. 2003] HOLOCAUST INSURANCE RESTITUTION 331 undisclosed private California suits.197 In addition, humanitarian “general” funds, not intended for those who have valid individual claims, are as follows: 1) the Dutch fund, $10.2 million; 2) the California fund, $4.2 million; and 3) the German fund, $158.3 million.198 Thus, the humanitarian funds provide another $172.7 million, bringing the grand total for all insurance restitution to approximately $400 million, depending on exchange rates. While $400 million may at first glance seem to be a rather large number, it pales in comparison to the estimated actual losses, and to the results of restitution efforts regarding other types of Holocaust-era assets. It is a mere sixteen percent of the median-range estimate of $2.5 billion in lost insurance assets.199 It is roughly a third of the $1.25 billion recovered from the Swiss banks,200 and it is a pathetic eight percent of the $5 billion German slave-labor settlement.201 In total, the restitution efforts for insurance assets have accounted for less than seven percent of all Holocaust-era restitution achieved to date. More importantly, it has failed to achieve restitution of nearly eighty-five percent of the actual insurance assets owed to survivors and their heirs, to say nothing of the profits that have been earned, over the past six decades, by the wrongful holders of those assets. Based on these numbers alone, it is reasonable to conclude that the entire process of insurance restitution has failed the larger part of its goals. 197 See discussion supra notes 72, 90, 109, 127, 153, 162, 168. 198 See discussion supra notes 111, 115, 159. 199 See discussion supra note 49. 200 See discussion supra note 51. 201 See discussion supra note 53. 332 NEW ENG. J. INT’L & COMP. L. [Vol. 9:1 4. Amounts Actually Paid to Claimants Sadly, when one examines the amounts actually received by the survivors themselves, the picture only becomes grimmer. To summarize briefly, the amounts from each attempt which have actually been paid out to survivors are as follows: 1) the New York suit, nothing at all; 2) Legislation, also nothing; 3) the Israeli fund, $8,530,572; 4) the Dutch fund, $301,026; 5) ICHEIC, $21.9 million; 6) the German fund, nothing; 7) the Austrian fund, also nothing; and finally, 8) the Stern family settlement, $1.25 million.202 Thus, the total amount that has actually reached its intended recipients is less than $32 million, or approximately 1.3 percent of the money that rightfully belongs to them. IV. CONCLUSION In the words of Elan Steinberg of the World Jewish Congress, “[w]hat we are really talking about is . . . the greatest robbery in history.”203 And there is no other conclusion that can possibly be drawn than that the robbers continue to go unpunished for their crimes. The restitution efforts thus far have resulted in a mere pittance of what could possibly be considered just compensation. To add insult to injury, the vast majority of what little has been achieved remains tied up in bureaucratic red tape instead of being distributed to its rightful owners. The brightest promise for the future seems to rest in the two class-action suits. The most promising is the reawakening of the New York (now Multi-District) case. The discrediting of ICHEIC and a more forceful litigation stance could do much to frighten or embarrass the insurers into offering more acceptable settlements. Alternatively, if the 202 See discussion supra notes 72, 104, 112, 151, 157, 164, 168. 203 TORONTO STAR, supra note 43. 2003] HOLOCAUST INSURANCE RESTITUTION 333 Anderman case against the Austrian settlement can succeed in its demand for complete disclosure of policy information, plus an impartial assessment of the true value of the assets stolen, then perhaps justice (at least for the Austrian survivors) may finally be done. In addition, the pending congressional bill calling for a national Holocaust insurance registry, if passed, would help enormously. But for now, survivors for the most part remain as they have been for the past sixty years: unpaid. At this point, the only thing that is certain is that the story of Holocaust insurance restitution is far from over.